Could it have been worse than Sotomayor?

posted at 1:34 pm on June 12, 2009 by Ed Morrissey
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Byron York says yes — and it could still get that way.  Barack Obama has nominated Judge Andre Davis to the Fourth Circuit Court of Appeals, which York finds ironic, since they have spent a considerable amount of time reversing Davis’ rulings from his Maryland District Court.  The Senate Judiciary Committee has approved Davis 16-3 and the Senate will likely confirm him, but York says they should take a second look.

York mainly focuses on a case in 2005 in which Davis got overturned unanimously by the same panel he will shortly join.  Police arrested a suspect in his mother’s house after she gave her consent to a search.  While in the process of reading the suspect his rights, his mother — extremely angry at the son — peppered him with questions, and the son admitted that he had an illegal weapon hidden in the room as well as drugs.  Davis ruled that his admission could not be used in court, as the mother acted as an agent of the police in interrogating the son before he was properly Mirandized.  The 4th Circuit scoffed at that notion, rejecting the argument out of hand.

That is one of 13 reversals on criminal matters:

Davis has made other, equally striking mistakes. There was the 2004 case in which a drug dealer used a Mail Boxes Etc. branch to pick up packages of cocaine. Police confiscated one package and discovered that the man had keys to several other boxes which investigators knew had been used to receive drugs. The cops also had eyewitness testimony linking the man to the boxes. Yet Davis ruled police did not have probable cause to arrest and search the man. The judge’s decision was unanimously overturned by the Fourth Circuit.

Then there was the 2006 case in which Davis virtually begged three violent drug offenders to plead guilty so they could get lighter sentences. It was a near-total abdication of a judge’s role as neutral arbiter, which the Fourth Circuit, in unanimously overturning Davis, said “affects the fairness, integrity, and public reputation of judicial proceedings.”

In all, Davis’ decisions on criminal matters have been overturned 13 times, more often than not because Davis erred by siding with accused criminals.

York mainly concerns himself with the damage Davis can do on the 4th Circuit, which could be considerable, but that’s not the biggest problem with Davis’ appointment.  The 4th Circuit handles cases in the mid-Atlantic region, giving it a high profile — and making it a tempting place to find future Supreme Court nominees.  That was the reason Democrats fought so hard against conservative jurist Janice Rogers Brown on the DC Circuit, and for much less reason than the Republicans have with Davis.

A nomination of Andre Davis to the Supreme Court would make Sonia Sotomayor look like Anthony Kennedy.  Republicans will not be able to stop the Davis appointment at this late date, but they do need to get these cases and their concerns on the record now, to prevent the “Republicans didn’t object before” defense the White House trotted out with Sotomayor.

Update: Commenters correctly point out that I had confused the DC Circuit with the 4th Circuit, which covers the mid-Atlantic region and still has a high profile in DC.  Thank you for the correction.

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